Thomas et al v. Bayou Fox, Inc. (Joint Assign)

REPLY BRIEF re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

M.D. Ala.January 9, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION MARIAH THOMAS, HARLEY YANCEY ) and VICTORIA RENDFELT, et. al., ) ) Plaintiffs, ) ) v. ) CIVIL ACTION NO.: ) 1:15-cv-00623-WKW-GMB BAYOU FOX, INC. d/b/a HOOTERS, ) DOTHAN WINGS, INC., GULF COAST ) WINGS, INC., ROBERT FOX, STUART ) K. HOUSTON, PHIL ROBINSON, and ) HOMESTAR RESTAURANT GROUP, ) LLC, ) Defendants. ) ___________________________________ ) DEFENDANTS’ REPLY BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT In their Response, all 20 plaintiffs agree they worked in the quintessential tipped occupation of restaurant server. Not one plaintiff contends that she worked in some other occupation or that a single workweek ever occurred in which she earned less than the minimum wage when the tips she received are counted. In sum, plaintiffs’ Second Amended Complaint (“SAC”) simply does not plausibly allege that any of the plaintiffs actually received less than the minimum wage during any workweek in the course of their employment. The plaintiffs, however, ask this Court to don the judicial equivalent of blinders and completely ignore the tips they received while working as restaurant Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 1 of 21 2 servers. They make this request despite the plain language of the Fair Labor Standards Act and its interpretive regulations, which expressly allow tips to be considered in determining whether an employee in a tipped occupation has been paid the minimum wage. 29 U.S.C. § 203(m), (t); 29 C.F.R. §§ 531.51, .56(e). Instead, plaintiffs seek to bring a cause of action that the Court would need to imply from a sentence in a Handbook which the Department of Labor (“DOL”)` distributes to its employees. This language, according to the plaintiffs, creates a right of action under 29 U.S.C. § 203, where a tipped employee spends over 20% of her time performing “non-tipped work.” The same Handbook, however, comes with an express warning from the DOL that nothing it contains should be used as interpretative policy. Given that the agency itself has disclaimed any intention that its Handbook should carry the force of law, the Handbook is an altogether inappropriate basis for an implied right of action. The “20%” guideline is not contained in the statute and is not a regulation that was adopted pursuant to the notice and comment rule making process prescribed by Congress in the Administrative Procedure Act. The defendants respectfully request that their Motion to Dismiss be granted. A. Plaintiffs Are Mistaken About Stare Decisis and the Manner in Which the FLSA Should be Interpreted Plaintiffs initially contend that the Supreme Court’s denial of certiorari in Fast v. Applebee’s International, Inc., 638 F.3d 872 (8th Cir. 2011), cert. denied, 132 S.Ct. Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 2 of 21 3 1094 (2012), is dispositive of this Motion. As discussed below and in their initial Brief, the defendants respectfully submit that Fast was incorrectly decided. Moreover, the Supreme Court repeatedly has held that its “denial of a writ of certiorari imports no expression of opinion about the merits of the case.” United States v. Carver, 260 U.S. 482, 490 (1923) (Holmes, J.). As explained by the Court, “the ‘variety of considerations [that] underlie denials of the writ’ … counsels against according denials of certiorari any precedential value.” Teague v. Lane, 489 U.S. 288, 296 (1989), quoting, Maryland v. Baltimore Radio Show, 338 U.S. 912, 917 (1950) (Frankfurter, J.). Accordingly, Fast only is binding precedent within the Eighth Circuit and this Court is free to agree or disagree with its reasoning and conclusions. Plaintiffs similarly are mistaken about the manner in which the tip credit provision of the FLSA, 29 U.S.C. § 203(m), should be interpreted. Plaintiffs seem to contend that § 203(m) is akin to an exemption from overtime under the FLSA and should be construed narrowly. Nevertheless, the Court has recognized that the “exemptions from the Act generally reside in § 213, which is entitled ‘Exemptions’ and classifies certain kinds of workers as uncovered by various provisions. Thus, in Christopher v. SmithKline Beecham Corp., 132 S.Ct. 2156, 2171 n. 21 (2012), we declared the narrow-construction principle inapplicable to a provision appearing in Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 3 of 21 4 § 203, entitled Definitions.” See Sandifer v. U.S. Steel Corp., 134 S.Ct. 870, 879 n.7 (2014). In addition, plaintiffs argue that because the SAC assiduously avoids any mention of how much the plaintiffs earned in tips or whether the plaintiffs retained all of their tips, this somehow precludes dismissal. In none of the three iterations their Complaint, however, have plaintiffs alleged that they made less than $30 per month in tips or that they were improperly compelled to share their tips with others.1 If plaintiffs contend that such violations of the FLSA really occurred, they should have pled them in one of their Complaints. Plaintiffs have never accused defendants of this conduct and it is absurd to assert that defendants should have responded to allegations that plaintiffs have refrained from making. Cf. Fed.R.Civ.P. 8(b)(2)(“A denial must fairly respond to the substance of the allegation.”). Under no stretch of the Rules or the case law are defendants required to read plaintiffs’ minds and anticipate every possible violation of the FLSA that plaintiffs might conjure up but never plead. B. The Plaintiffs Have Failed to Allege That They Earned Less Than the Minimum Wage When their Tips are Counted In their initial Brief, defendants pointed out that a minimum wage violation is stated only if a plaintiff's total pay for a particular workweek divided by the total 1 See 29 U.S.C. § 203(m), (t). Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 4 of 21 5 number of hours worked in that workweek comes to less than the minimum wage of $7.25 per hour. United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 490 (2d Cir. 1960); see also 3C K.O'Malley, J.Grenig, W.Lee, Federal Jury Practice and Instructions § 175.20 (5th ed. 2001)(comments)("The unit of measurement for determining compliance with the minimum wage requirement is the workweek, defined as 168 hours, or seven consecutive days...."); 29 C.F.R. § 776.4(a)("The workweek is to be taken as the standard in determining the applicability of the Act."). Plaintiffs' failure to allege that any plaintiff earned less than the minimum wage during any workweek when her tips are counted, contravenes this fundamental principle. Richardson v. Mountain Range Restaurants, LLC, No. CV14-1370, 2015 WL 1279237 *5 (D. Ariz., March 19, 2015). Plaintiffs contend that this requirement does not apply to them apparently because they do not consider tips to be wages. (Plaintiffs' Brief at pp. 9,10). Plaintiffs are incorrect. “Tips” are expressly included within the FLSA’s definition of “wage” in § 203(m). Even the court in Fast recognized that "[t]he wage paid to a 'tipped employee' is defined as the sum of (1) the cash wage paid to the employee ... and (2) an additional amount based on the tips received by the employee the tips received by the employee...." 638 F.3d at 876, citing, 29 U.S.C. § 203(m). Without citing any direct authority to the contrary, plaintiffs urge that the rule in Klinghoffer is Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 5 of 21 6 inapplicable to tipped employees.2 The court in Klinghoffer, however, did not limit its holding to any particular type of employee and the federal courts have applied it in a variety of contexts. See, e.g., Hensley v. MacMillan Blooded Containers, Inc., 786 F.2d 353, 357 (8th Cir. 1986)(truck driver who received more than the minimum wage for trips compensated by mileage driven could not assert a minimum wage claim under 206); Dove v. Coupe, 759 F.2d 167, 171 (D.C. Cir. 1985)("courts have agreed that the workweek standard generally represents an entirely reasonable reading of the statute); Adair v. City of Kirkland, 185 F.3d 1055, 1063 (9th Cir. 1999)(police officers failed to state minimum wage violation where their salary, when averaged across their total time worked, still paid them above the minimum wage). And, notwithstanding what plaintiffs seem to believe, the courts have applied Klinghoffer in connection with tipped employees such as restaurant servers. Cuevas v. Monroe Street Club, Inc., 752 F.Supp. 1405, 1416 (N.D. Ill. 1990). More recently, courts have relied upon Klinghoffer in determining that so called "gap time" claims do not exist under the FLSA. See, e.g., Lundy v. Catholic Health System of Long Island Incorporated, 711 F.3d 106, 115 (2d Cir. 2013)(“An employee who has not worked overtime has no claim under the FLSA for hours worked below the 40-hour overtime 2 The Fast decision did not discuss Klinghoffer and it does not appear this argument was before the Eighth Circuit. Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 6 of 21 7 threshold, unless the average hourly pay falls below the federal minimum wage.”). Plaintiffs' contention that the application of Klinghoffer would read the requirements of section 203(m) "right out of existence" is incomprehensible.3 The plaintiffs in this case do not allege that they were anything but restaurant servers, an indisputably tipped occupation. Nor do the plaintiffs allege that they received less than $30 per month in tips or that they were required to share their tips with non- tipped employees in violation of 203(m). Plaintiffs simply do not want their tips to be counted when determining whether they were paid the minimum wage. This is contrary to the FLSA and plaintiffs have failed to state a minimum wage claim. Moreover, even assuming that plaintiffs are correct that the 20% limit contained in the DOL Handbook obtains in this case, they still have not sufficiently pled any facts demonstrating that there was a single workweek in which a violation occurred. In Craig v. Landry’s, Inc., No. 1:16-cv-277, 2016 WL 3406032 (S.D.Ohio, June 21, 2016), several restaurant servers brought an action containing allegations similar to those in this case. Like the present plaintiffs, they alleged that they had performed “non-tipped work” before the restaurant opened and after it 3 Among other things, plaintiffs refer to the decision in Mechmet v. Four Seasons Hotels, Ltd., 825 F.2d 1173 (7th Cir. 1987). That case, however, involved the automatic service charge that hotels apply to banquets, weddings and other functions and whether a service charge constitutes a commission under 29 U.S.C. § 207(i). The court distinguished the service charges from tips. 825 F.2d at 1177. Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 7 of 21 8 closed. After noting the disagreement among the courts about whether the 20% limit is entitled to deference, the court in Craig found that even if the limit were applicable, plaintiffs’ claim still was deficient because plaintiffs had failed to allege the number of hours they had worked during the workweek. Plaintiffs do not even allege the overall number of hours per week they worked, making their allegations about the number of hours they worked before and after the restaurant was open to the public meaningless. In other words, without a denominator indicating the number of hours in Plaintiff’s workweek, it is not plausible to infer that Plaintiffs performed incidental non-tipped work more than 20% of their workweek. Accordingly, the second amended complaint fails to state a claim for violations of the federal and state minimum wage laws based on Plaintiffs’ performance of duties incidental to their tipped occupation. Id. at *4. As described above, the SAC in the present case suffers from the same shortcoming. The plaintiffs may have alleged facts supporting the numerator, but they have not alleged anything supporting the denominator, i.e., the workweek. Plaintiffs’ allegations of minimum wage violations are implausible and should be dismissed. C. The Plaintiffs Do Not Contend They Worked in Dual Jobs At no point in their Response do plaintiffs assert that any of the tasks they complain about fell outside the scope of work that a person typically performs in the Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 8 of 21 9 occupation of restaurant server.4 Rather, plaintiffs lump these activities together and generally refer to them as “non tipped work” or work “before and after customer service hours.” The SAC describes them as follows: • taking down chairs; • wiping tables and menus; • setting out menus; • making tea; • rolling silverware; • filling salt and pepper shakers; • inspecting and cleaning glasses when necessary; • cutting fruits and vegetables; • filling ice machines; • attending “Jumpstart” meetings to discuss the day, sales, and upcoming events. (SAC at ¶ 43). Each and every one of these tasks is incidental to plaintiffs’ occupation of restaurant server and plaintiffs do not claim otherwise. Indeed, another division of the United States Department of Labor, the Employment and Training Division, 4 At page 8 of their Response, the plaintiffs state that they were employed as “servers and bartenders.” The SAC, however, does not contain any allegations about plaintiffs performing work as bartenders. It exclusively alleges that plaintiffs worked as servers. Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 9 of 21 10 sponsors the Occupational Information Network (“O*Net”), a website that provides descriptions for a vast number of jobs in the U.S. economy. With respect to servers, which it refers to as “waiters and waitresses,” O*NET lists the following as among the core tasks performed in that occupation: • Cleans tables or counters after patrons have finished dining; • Prepare hot, cold and mixed drinks for patrons, chill bottles of wine; • Roll silverware, set up food stations or set up dining areas to prepare for the next shift or for large parties; • Stock service areas with supplies such as coffee, food, tableware and linens; • Prepare tables for meals, including setting up items such as linens, silverware or glassware; • Perform cleaning duties, such as sweeping and mopping floors, vacuuming carpet, tidying up server station, taking out trash, or checking and cleaning bathroom; perform food preparation duties such as preparing salads, appetizers, and cold dishes, portioning deserts, and brewing coffee; • Perform food preparation duties such as fill salt, pepper, sugar, cream, condiment, and napkin containers. See https://www.dol.gov/whd/FOH/FOH_Ch30.pdf All of the above are identical or remarkably similar to the different tasks that the plaintiffs complain about having had to perform during their work for the defendants. Thus, the different tasks listed in the SAC are indisputably related or Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 10 of 21 11 incidental to the occupation of server. Accordingly, this case in no way can be construed as involving dual occupations as described in the regulation. The SAC’s failure to include facts that would support a dual job allegation precludes a plausible minimum wage claim. Both the FLSA and the regulations that the DOL has promulgated focus exclusively on a person’s occupation in determining whether the employer may take a tip credit and comply with the Act’s minimum wage requirements. Thus, the FLSA defines a “tipped employee” as “any employee engaged in an occupation in which he customarily and regularly receives over $30 a month in tips.” 29 U.S.C. § 203(t) (emphasis added). The DOL’s interpretative regulations accordingly provide that the availability of the tip credit depends upon the employee’s occupation: The wage credit permitted on account of tips under section 3(m) may be taken only with respect to wage payments made under the Act to those employees whose occupation in the workweeks for which such payments are made are those of “tipped employees” as defined in section 3(t). Under section 3(t), the occupation of the employee must be one “in which he customarily and regularly receives more than $30 a month in tips.” To determine whether a tip credit may be taken in paying wages to a particular employee it is necessary to know what payments constitute “tips,” whether the employee receives “more than $30 a month” in such payments in the occupation in which he is engaged, and whether in such occupation he receives these payments in such amount “customarily and regularly.” 29 C.F.R. § 531.51 (emphasis added). The DOL reiterated this occupation based standard in its “Dual Jobs” regulation: Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 11 of 21 12 (e) Dual jobs. In some situations an employee is employed in a dual job, as for example, where a maintenance man in a hotel also serves as a waiter. In such situation the employee, if he customarily and regularly receives at least $30 a month in tips for his work as a waiter, is a tipped employee only with respect to his employment as a waiter. He is employed in two occupations, and no tip credit can be taken for his hours of employment in his occupation of maintenance man. Such a situation is distinguishable from that of a waitress who spends part of her time cleaning and setting tables, toasting bread, making coffee and occasionally washing dishes or glasses. It is likewise distinguishable from the counterman who also prepares his own short orders or who, as part of a group of countermen, takes a turn as a short order cook for the group. Such related duties in an occupation that is a tipped occupation need not by themselves be directed towards producing tips. 29 C.F.R. § 531.56(e) (emphasis added). In sum, the appropriate analysis for determining whether a tip credit may be taken under 29 U.S.C. § 203(m) turns on the occupation in which the individual is employed. As the plaintiffs were employed in the occupation of restaurant server and the tasks they list in the SAC are entirely incidental to that occupation, the defendants taking of a tip credit was proper and the SAC fails to state a claim. D. The Temporal Limit In the DOL Handbook Adds a Requirement Not Found In the Statute or the Regulations. Although the defendants do not allege that they worked in dual occupations, they do contend that while working as servers they engaged in “non tipped work.” Exactly what the definition or parameters of “non tipped work” might be, the plaintiffs never quite say. They do not identify any part of the FLSA or the regulations that defines such a concept or even contains this phrase. As noted above, Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 12 of 21 13 both the statue and the regulations repeatedly refer to an employee’s “occupation” as the determinative factor in whether a tip credit may be taken. Nevertheless, plaintiffs rely on the following section in the DOL’s non- binding Field Operations Handbook: Reg. 531.56(e) permits the taking of the tip credit for time spent in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips (i.e., maintenance and preparatory or closing activities). For example, a waiter/waitress, who spends some time cleaning and setting tables, making coffee, and occasionally washing dishes or glasses may continue to be engaged in a tipped occupation even through these duties are not tip producing, provided such duties are incidental to the regular duties for the server (waiter/waitress) and are generally assigned to the servers. However, where the facts indicate that specific employees are routinely assigned to maintenance, or that tipped employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties. Plaintiffs maintain that this section plus the decision in Fast and its progeny, allow them to maintain a claim for “non tipped work” even though that work is incidental to their occupation.5 Defendants respectfully submit that Fast was wrongly decided for several reasons. First, the dual jobs regulation, 29 C.F.R. § 531.56(e) is not ambiguous, and 5 In their Brief, plaintiffs cite a number of cases in further support of their position. By and large, all of these are based on Fast or reasoning similar to that used in Fast. Plaintiffs further tally up the decisions and compare the total with the number of decisions that have followed Richardson v. Mountain Range Restaurants, 2015 WL 1279237 (D. Ariz., March 19, 2015). To the extent this exercise has any relevance, an additional decision should be added to the Richardson column: Kirchgessner v. CHLN, Inc., 174 F.Supp. 3d 1121 (D. Ariz. 2016). Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 13 of 21 14 the court should not have given deference to the Handbook under Auer v. Robbins, 519 U.S. 452, 461 (1997). Nothing in the regulation requires a minute by minute examination of an employee’s duties in order to determine whether she has “dual jobs.” Rather, the regulation focuses exclusively on the individual’s occupation. Although the Fast court held that the regulation’s reference to a waitress performing related duties “part of the time” or occasionally” required further explanation by the DOL,6 that language simply was intended to provide a contrast with the preceding sentence of the regulation. The earlier sentence, in turn, pointed out that an employee who works as a waiter and a maintenance man is employed in two separate occupations. Thus, the waitress has a single occupation although she spends part of her time preparing food and cleaning. Nothing in the regulation’s language requires an analysis of how every minute of the waitress’ shift has been spent. In fact, the next example in the regulation, that of a “counterman,” contains no mention of time whatever: It is likewise distinguishable from a counterman who also prepares his own short orders or who, as part of a group of countermen, takes a turn as a short order cook for the group. 29 C.F.R. § 531.56(e). Consequently, the regulation permits a counterman to cook his customer’s orders without becoming a short order cook. Under the regulation, a counterman could cook all of his customer’s orders and divide his time equally 6 638 F.3d at 880. Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 14 of 21 15 between serving and cooking while still remaining a counterman. The regulation, therefore, only contemplates an occupation-based analysis and is not ambiguous. Second, the court in Fast should not have given deference to the 20% limit because the Handbook itself states that “it is not to be used as a device for establishing interpretative policy.” See https://www.dol.gov/whd/FOH/index.htm. See also Probert v. Family Centered Services of Alaska, Inc., 651 F.3d 1007, 1012 (9th Cir. 2011)(Handbook was not a proper source of interpretive guidance). Neither the FLSA nor the regulations limit the kinds of duties that can be performed by an employee in a tipped occupation. Thus, the imposition of a 20% limitation adds a requirement not found in the statute and is arbitrary and capricious. Moreover, the 20% limit fails to account for two positions that Congress clearly considered to be tipped occupations: busboys and service bartenders. When Congress amended the FLSA in 1974, it indicated its views that certain occupations are tipped: “Nor is the requirement that the tipped employee retain such employee’s own tips intended to discourage the practice of pooling, splitting or sharing tips with employees who customarily and regularly receive tips-e.g., waiters, bellhops, waitresses, countermen, busboys, service bartenders, etc.” S. Rep. No. 93-690, at 43 (Feb. 22, 1974). The occupations of busboy and service bartender, however, involve little or no customer interaction and they engage in few if any tasks that would qualify as Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 15 of 21 16 “tip-producing” under the plaintiffs’ interpretation of the regulation. Instead, those roles consist predominantly, if not exclusively, of activities plaintiffs would consider either “related” to tip-producing work or “unrelated” to any tip-producing work. As one court has observed, “busboys do not necessarily interact directly with restaurant patrons . . . because a busboy’s duties normally do not come into play until the patrons have concluded their dining experience. Nor does a busboy normally directly receive tips from customers or directly inter-act with them; yet, busboys are still considered as employees who customarily and regularly receive tips.” Lentz v. Spanky’s Rest. II, Inc., 491 F. Supp. 2d 663, 670-71 (N.D. Tex. 2007); see also U.S. Dep’t of Labor, Wage & Hour Div., Opinion Letter FLSA2009-23, 2009 DOLWH LEXIS 27 (Jan. 15, 2009) (describing duties of “barbacks”-also known as service bartenders-as “responsible for restocking the bar and ensuring that the bar area remains clean and organized . . . bus[sing] the service counter, clean[ing] empty glasses sitting on the bar, tak[ing] out the trash from behind the bar and clean[ing] the floor of the bar area” and “occasionally interact[ing] with customers”; finding barbacks to be tipped employees). Under the “20%” limit adopted in Fast, employers of busboys and service bartenders would not be able to use the tip credit for most, if not all, of the time these employees spend on the principal duties of their occupations. Congress, however, directed exactly the opposite result, specifically citing these occupations as examples Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 16 of 21 17 of tipped employees. This fundamental inability of the 20% limit to account for two of the central occupations Congress had in mind as illustrative examples of tipped employees demonstrates that the “20%” limit is arbitrary and capricious and the court’s reliance upon it in Fast was misplaced. Third, as recognized by the court in Pellon v. Business Representation International, Inc., 528 F.Supp.2d 1306 (S.D. Fla. 2007), aff’d, 291 F.App’x 310 (11th Cir. 2008) the use of the 20% limit would create an unworkable system: “nearly every person employed in a tipped occupation could claim a cause of action against his employer if the employer did not keep the employee under perpetual surveillance or require them to maintain precise time logs accounting for every minute of their shifts.” Id. at 1314. This also would run counter to the Supreme Court’s observation that it is unlikely Congress intended “to convert federal judges into time study professionals” through anything in 29 U.S.C. § 203(e). Sandifer, 134 S.Ct. at 881. The same also can be said of § 203(m). Indeed, the Crate decision, cited by the plaintiffs, exemplifies how unworkable such a system could be. Crate v. Q’s Restaurant Group, LLC, No. 8- 13-cv-2549-T-24 EAJ, 2014 WL 10556347 (M.D. Fla., May 2, 2014). Pursuant to the court’s opinion in Crate, an employer would need to do the following: (1) specify the regular duties of a server that are directed toward producing tips; (2) specify which duties are “related to” or “not related to” the server’s duties; (3) track Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 17 of 21 18 the server’s tasks on a minute by minute basis; (4) identify the time spent on tasks that are (a) tip-producing; (b) related to the tip producing activities; and (c) unrelated to the tip producing activities; and, (5) calculate what percentage of the workweek was spent on the three categories of tasks. See Id., at *4-5. Further, there simply is no clear line under such a system between those duties while produce tips and those which do not. For example, plaintiffs appear to urge that “tip producing” hours cannot exceed a restaurant’s public operating hours. However, this fails to account for customers who arrive shortly before closing hours, order meals and are not served until sometime after the restaurant has “closed.” If work hours are to be segmented in this fashion, then the DOL should engage in rulemaking under the APA and obtain comments and input from restaurant operators, the hotel industry, and any other person or group that might be affected. Simply decreeing that 20% is the operative standard neither comports with the procedural requirements of the APA nor fulfills any of the purposes of the FLSA. Defendants respectfully request that the plaintiffs’ Second Amended Complaint be dismissed. Respectfully submitted, this 9th day of January, 2017. s/ John R. Hunt _________________________ Arch Stokes, admitted pro hac vice Georgia Bar No.: 683100 John R. Hunt, admitted pro hac vice Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 18 of 21 19 Georgia Bar No.: 378530 Stokes Wagner One Atlantic Center, Suite 2400 1201 West Peachtree St. Atlanta, Georgia 30309 404/766-0076 - Phone 404/766-8823 - Fax astokes@stokeswagner.com jhunt@stokeswagner.com jarkin@stokeswagner.com Attorneys for Defendants Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 19 of 21 20 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION MARIAH THOMAS, HARLEY YANCEY ) and VICTORIA RENDFELT, et. al., ) ) Plaintiffs, ) ) v. ) CIVIL ACTION NO.: ) 1:15-cv-00623-WKW-GMB BAYOU FOX, INC. d/b/a HOOTERS, ) DOTHAN WINGS, INC., GULF COAST ) WINGS, INC., ROBERT FOX, STUART ) K. HOUSTON, PHIL ROBINSON, and ) HOMESTAR RESTAURANT GROUP, ) LLC, ) Defendants. ) ___________________________________ ) CERTIFICATE OF SERVICE I hereby certify that on the date below, I electronically filed the foregoing document with the Clerk of Court using CM/ECF and also certify that the foregoing document will be served on counsel of record below: Robert J. Camp, Esq. Wiggins, Childs, Pantazis, Fisher & Goldfarb, LLC The Kress Building 301 19th Street North Birmingham, Alabama 35203 William G. Pierce, Esq. Jacoby & Meyers, LLC 111 East Main Street Dothan, AL 36301 This 9th day of January, 2017. Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 20 of 21 21 _s/ John R. Hunt____________ Arch Stokes John R. Hunt Jordan D. Arkin STOKES WAGNER One Atlantic Center, Suite 2400 1201 West Peachtree St. Atlanta, Georgia 30309 404/766-0076 - Phone 404/766-8823 - Fax Attorneys for Defendants Case 1:15-cv-00623-WKW-GMB Document 61 Filed 01/09/17 Page 21 of 21